Guernsey: When Can An Employer Say 'Enough Is Enough' And Dismiss?

This question was recently put before Guernsey's
Employment and Discrimination Tribunal in an action brought by what
even it describes as a "difficult employee".

Here the applicant brought an action against All Island Carpets
Limited claiming unfair dismissal after he received a letter
terminating his contract of employment on the grounds of
"unacceptable absence and threatening behaviour".

At first blush, the employer's actions to dismiss sound fair
and reasonable - what employer could be expected to tolerate such
conduct? Not so, ruled the Tribunal, which ordered the company to
make an award of compensation equal to six months' gross
salary. So what went wrong for the company?

Despite the employee having a history of walking-out of his
employment without notice, and having the occasional
'dust-up' with the boss, the Tribunal relied on the
statutory right not to be unfairly dismissed unless the dismissal
was for a fair reason and a fair procedure was adopted.

There were various occasions during the five years of his
employment that the applicant had walked out or disappeared without
notice, only to re-appear days later. Following each period of
absence the company was unsure whether the applicant had resigned
and his contract of employment terminated. To avoid uncertainty the
company issued new contracts of employment but on less favourable
terms than the last; these contracts made no provision for holiday
pay.

Following a period of two week's annual leave in which the
applicant received no holiday pay, the applicant's mother took
it upon herself to attend the company's office and verbally
'sound off' at its staff over the non-payment of her
son's holiday pay.

Witness evidence before the Tribunal concluded that her
behaviour was threatening and that her actions indicated to all
present that the applicant had resigned. After being subjected to
this fracas, the company contacted the applicant directly and he
confirmed his resignation. However, within 24 hours the applicant
sent a text message to the company changing his mind and advising
that he would continue to work. Again, a new contract of employment
was issued. However, very shortly after entering into this new
contract, the applicant was absent from work due to sickness for a
total of 14 days. The company's patience had now finally run
out and shortly thereafter it served the letter of termination
resulting in the applicant's claim for unfair dismissal.

SO WAS THE EMPLOYER ENTITLED TO SAY ENOUGH IS ENOUGH AND TAKE
THE STEP TO DISMISS?

To successfully defend the claim, the company had to show that
a) the reason for his dismissal was fair; and b) that the dismissal
itself was fair, having regard to the reason given.

The Tribunal expressly noted in its ruling that the company had
"treated him with tolerance...and had always treated its staff
well"; at no time was the Tribunal critical of the
company's reaction, in fact it went so far as to sympathise
with its predicament. However, the Tribunal ruled that the reasons
for the applicant's dismissal were not fair. Firstly, prior to
the absence of 14 days, the applicant's previous sickness
absence was minimal and there was no evidence to suggest that his
absence was excessive or not genuine. The Tribunal commented that
even a small employer (such as the company) should be able to
manage absence due to the ill health of an employee. The applicant
had not shown a level of "unacceptable absence".
Secondly, there was no evidence that the applicant had displayed
"threatening behaviour" to the company; it had in fact
been his mother. Neither of the grounds for dismissal gave the
company the right to dismiss.

Further, the actual dismissal itself was not considered to be
fair; the letter of termination was served without any prior
warning or consultation and this was not justified. Consequently,
the Tribunal ruled that the applicant had been unfairly dismissed
and the company was ordered to pay compensation accordingly.

This may seem a harsh decision to some, particularly for those
of you who also have a "difficult employee" to deal with.
The important point to remember here is that the Tribunal did not
rule that "unacceptable absence" and "threatening
behaviour" are not grounds for a potentially fair dismissal,
just that they could not be proven on the facts of this case, nor
was the procedure adopted by the company particularly fair.

Therefore, if you find yourself facing a similar situation, then
please speak to one of our Employment team to ensure that it is
handled correctly before you find yourself paying out when it could
so easily have been avoided if it had just been dealt with
appropriately.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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